February 21, 2014

Well, how about that! California isn't exempt from the Second Amendment after all.

The news out of the U.S. 9th Circuit Court of Appeals last week perhaps came as a surprise to most of our state's legislators, professional gun control activists, a bevy of law professors, our mercurial governor, some dangerously politicized chiefs of police and many of our friends in the press.

But there it was, with two of three federal judges ruling that state laws barring law-abiding citizens from carrying a gun in public, either concealed with a permit or openly without, fall afoul of the constitutional right to keep and bear arms.

Language, as always, is crucial. Judge Diarmuid O'Scannlain, writing for the court, offered a common sense rather than tortured interpretation of the verb "to bear." "Bear" in this context plainly means "carry." Pretty straightforward, right?

As it happens, California law already allows people to carry concealed weapons with a permit. As for obtaining a permit, the process can be ... well, unbearable.

If you live in an underpopulated rural area, you won't have a problem. But if you live somewhere such as San Francisco, Los Angeles or San Diego, you'd better be a U.S. senator, a movie star with a clean criminal record or a generous donor to your county sheriff's re-election campaign.

The 9th Circuit ruling, in fact, stemmed from a lawsuit challenging San Diego County's rules for issuing a concealed-weapon permit. The law specifies that an applicant for a permit must be of "good moral character" - nobody disagrees with that - and demonstrate "good cause" to have one.

Trouble is, San Diego and many other counties say concern for "one's personal safety alone is not considered good cause." Nuts to that. If the basic, natural right of self-defense isn't "good cause," nothing is. And that's the problem the San Diego plaintiffs asked the 9th Circuit to rectify.

Understand what the court did not do. The court did not strike down California's licensing requirements entirely. Rather, the judges simply said that the government couldn't interpret "good cause" in a way that makes bearing arms "a second-class right, subject to an entirely different body of rules than other Bill of Rights guarantees."

"To be clear, we are not holding that the Second Amendment requires the states to permit concealed carry," O'Scannlain wrote. "But the Second Amendment does require that the states permit some form of carry for self-defense outside the home."

What about open carry then? California banned citizens from openly carrying loaded guns four decades ago after the Black Panthers showed up with rifles and shotguns on the Capitol steps. The ban on openly carrying unloaded weapons is of much more recent vintage.

Recall former Assemblyman Anthony Portantino's unusually dishonest rationale for sponsoring legislation outlawing the open carry of unloaded handguns and rifles. "You don't need a handgun to order a cheeseburger," the La Cañada-Flintridge Democrat said in 2012. "You don't need a handgun to get a cup of coffee."

Maybe you do, maybe you don't. The point is, "need" has nothing to do with it. Casually dismissing the right to openly carry an unloaded firearm as a legal "loophole," Portantino strongly implied that ordinary citizens were one bad latte away from loading up and opening fire. Such is the contempt our lawmakers have for the law-abiding.

But a fair reading of O'Scannlain's ruling should be seen as a sharp rebuke to Portantino and others - including a number of big city police chiefs, such as L.A.'s Charlie Beck and former L.A. County Sheriff Lee Baca - who claimed open carry was simply too scary to remain legal.

Whatever may become of the 9th Circuit's decision - whether open carry or concealed carry becomes easier - San Francisco isn't about to turn into San Antonio, as one wag put it.

UCLA law professor Eugene Volokh addressed the San Antonio-San Francisco analogy at his Washington Post blog, The Volokh Conspiracy. "One could as easily say 'turning San Francisco into Portland,' 'turning San Francisco into Seattle,' or 'turning San Francisco into Burlington, Vermont,'" he wrote.

As Volokh pointed out, all of those enlightened, progressive enclaves have had rather liberal - in the word's truest sense - gun laws for decades. Matter of fact, Vermonters don't even need a license to carry a concealed weapon.

Truth is, Californians have been fed a great deal of fear-mongering and demagoguery when it comes to people bearing arms openly, concealed - or at all.

If lawmakers took the approach to the First Amendment that they've taken to the Second, most of us wouldn't sit still for it. We've drifted too far into the realm of people needing to justify their rights to government. The 9th Circuit's vindication of the Second Amendment is a necessary corrective, nothing more.

Ben Boychuk is associate editor of the Manhattan Institute's City Journal. Reach him at bboychuk@city-journal.org.